1 1Research Associate, Institute of Ismaili Studies, London. An earlier version of this paper was presented at the 3rd Conference of the Islamic Law in Africa Project held in Cape Town, South Africa in March 2002. I am thankful to the organisers and participants of this conference, in particular Dr Ebrahim Moosa, for the invitation to attend and for their comments on my presentation. I would also like to thank Professor Azim Nanji of the Institute of Ismaili Studies for his review and comments on this paper and F.E. Jamal, Advocate, of Nairobi for providing me with copies of Kenyan legislation and clarifying points of Kenyan law for me. The responsibility for any weaknesses or errors in the final version, however, is mine alone.
I Other important social forces/systems that influence these interactions are education and the media.
2 Amy Gutman (cd.), Multiculturalism:ExploringthePoliticsofXecognition (Princeton: Princeton University Press, 1994), being an expanded edition of Charles Taylor's Multiculturalismand"ThePoliticsof Recognition" (1992).
Ibid. at 32
4 Adeno Addis, "On Human Diversity and the Limits of Toleration", Nomos, vol. 39 (1996), pp. 112-153 at 117. 5Ibid. at 125.
Ibid. at 126.
For a description of the Kikuyu system see Jomo Kenyatta, FacingMountKenya (London, 1938).
8 This is also the case in Tanzania and India although the legal frameworks under which this occurs arc different. 9 Creating one comprehensive code for these matters was attempted in Kenya, but the effort did not succeed. On these efforts see E. Cotran "Marriage, Divorce and Succession Laws in Kenya: Is Integration or Unification possible?" [ 1996] JournalofAfricanLaw 40:2 at 194-204 and Reportof theCommissionontheLawofMarriageandDivorce, Government Printer, Nairobi, 1968. ° Cap. 11. 11 Cap.155. 12 Cap. 156. 3 See in particular s. 5 of the Kadhis Courts Act.
i4 I have discussed the development of Shia Imami Ismaili law by constitutions in an earlier article "Principles in the Development of Ismaili Law" in vol. 7 of this Yearbook (2001) at pp. 115-126. ls See especially ss. 3 and 4 of the Mohammedan Marriage Divorce and Succession Act. For a guide to Kenyan law generally see Charles Mwalimu, TheKenyanLegalSystem:AnOverviem (Law Library, Library of Congress: Washington, DC, 1988). For a description of the Islamic Marriage and Divorce laws in Kenya see chapter one of E. Cotran, TheLawof MarriageandDivorce:RestatementofAfricanLaw,Kenya (London: Sweet 8c Maxwell, 1968). 17 Proclamation No. 2 of 1928. i8 Chapter 3 of the Reportof theCommissionontheLawofMarriageandDivorce (Nairobi, 1968).
19 Civil Appeal No. 52 of 1981 (unreported). 1 am indebted to Judge Eugene Cotran for having provided me with these and other materials based on his experience in East Africa. I might add that in Nurani, the Court of Appeal was affirming a decision of Cotran J. in the High Court! For a decision in a similar vein, also recognizing and affirming a settlement of an Ismaili community-based institution, see Lowe J.'s decision in the Tanzania (or, more correctly, "Tanganiyka" as it then was) case of Ratansiv.Mahmood (1955) 2 TLR 212. 20Ibid. 21 This applies equally in the case of Kadhis courts established under the Constitution of Kenya and the Kadhis Courts Act, Cap 11. Appeals from these courts lie to the High Court, which will sit with some kadhis as assessors in these cases. 22 Act No. 4 of 1995; see ss. 36-37 of the Act empowering the court toorderthe enforcement of the arbitral award, and for the conditions under which such enforcement may be refused.